United States v. Bass

Decision Date23 November 2011
Docket NumberNo. 10–1461.,10–1461.
Citation661 F.3d 1299
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Christopher Michael BASS, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

John F. Sullivan, III, The Law Office of John F. Sullivan, III, P.C., Denver, CO, for DefendantAppellant.

Andrew A. Vogt, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for PlaintiffAppellee.

Before KELLY, MURPHY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

A jury of the United States District Court for the District of Colorado convicted Defendant Christopher Bass on one count of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He was sentenced to 94 months in prison and 3 years of supervised release. On appeal he contends (1) that the search that discovered the firearm was unlawful because (a) the government failed to show that his girlfriend's consent to search his trailer was voluntary and (b) his girlfriend lacked authority to consent to the search of a zipper bag in the trailer; (2) that his sentence violates the Sixth Amendment because he received Sentencing Guidelines offense-level enhancements for alleged misconduct that he was acquitted of by the jury; and (3) that the evidence was insufficient to sustain the conviction. We have jurisdiction under 28 U.S.C. § 1291 and affirm.1

I. BACKGROUNDA. The Investigation

We take our factual summary from the evidence at the pretrial hearing on Defendant's motion to suppress.

Upon receiving a tip, Colorado Springs Police Officers Jessica Kundert and Shane Alvarez set up surveillance of Defendant's residence shortly after 1:00 p.m. on February 25, 2009. During their surveillance they observed a male, later identified as Defendant, leaving the area in a vehicle. They also observed a woman exiting the residence with what appeared to be personal belongings and putting them in a car trunk, although she did not leave the area. The officers followed Defendant. After events not relevant on appeal, officers arrested Defendant for possessing drug paraphernalia, searched his vehicle incident to the arrest, found methamphetamine inside the vehicle, and took Defendant to the police station.

Officers Kundert and Alvarez returned to the trailer at 3:00 p.m. to investigate further. When they knocked on the door, Jessica Ramsey (the woman whom they had observed earlier) answered, stepping outside to talk to them on the front porch. She told the officers that she lived in the trailer with her boyfriend, Christopher. She had used methamphetamine the previous evening and earlier that day, but she did not appear to be under the influence. Although she testified that she sometimes had difficulty deciding whether she was high or “normal,” she said that she was not high when the officers were there. R., Vol. 1 pt. 3 at 149.

Ms. Ramsey was initially hesitant to talk with the officers. She said that she needed to speak with the homeowner, and tried to call Defendant. The officers informed her that he was in custody. She became upset and began crying. But she told the officers that she was relieved because Defendant had been verbally abusing her, and she referred to the officers as angels.

The officers told her that they had found Defendant with drugs and a weapon (which was untrue—no weapon had actually been discovered) and that they wanted to search the residence for anything illegal. Officer Alvarez asked Ms. Ramsey if there was anything illegal in the residence. She said that she did not know, but that Defendant sometimes hid things.

At various times before the hearing, Ms. Ramsey had given conflicting statements about what happened next, but the district court ultimately credited her testimony (1) that she initially refused consent to a search, but when she learned that Defendant was in custody, she started to cooperate with the officers; and (2) that while she and the officers were still talking on the porch, she orally consented to their request to search the entire trailer for illegal items. The officers did not immediately give Ms. Ramsey the written consent form because it was in the officers' vehicle and because she was upset. After the officers started searching, they explained the written consent form to her and she signed it. Based on his initial observations inside the trailer, Officer Alvarez asked for assistance, and several other officers arrived to join the search. During the search Ms. Ramsey provided information about firearms and drugs that she had seen in the trailer, and she told the officers that Defendant stored firearms in black bags, satchels, or backpacks. Officer Alvarez found a black leather zipper bag in the living room. Upon opening it, he found a revolver, a computer, a digital scale, an adult magazine, and CDs. He did not ask Ms. Ramsey who owned the bag before opening it.

Ms. Ramsey also told officers that Defendant stored firearms in a neighbor's shed. The neighbor took the officers to the shed and unlocked it for them. Inside the shed was a long plastic rifle case, which contained two rifles.

B. Judicial Proceedings

Defendant was charged with two counts of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1)—one count for the revolver found in the bag, and one count for the two rifles found in the shed. Defendant moved to suppress much of the evidence, including the revolver found in the black bag. The district court denied the motion. With regard to the revolver, it ruled that Ms. Ramsey's consent to search was voluntary and that she had actual and apparent authority to consent.

The jury found Defendant guilty on Count One (the revolver) but not guilty on Count Two (the two rifles). In computing Defendant's offense level under the Sentencing Guidelines, the district court began with a base offense level of 14, see USSG § 2K2.1(a)(6), and added a 2–level enhancement for possession of three or more firearms, see id. § 2K2.1(b)(1)(A), a 2–level enhancement because a firearm was stolen, see id. § 2K2.1(b)(4)(A) and a 4–level enhancement for use or possession of a firearm in connection with another felony offense, see id. § 2K2.1(b)(6), resulting in a total offense level of 22. Given Defendant's criminal-history level of VI, his guideline sentencing range was 84–105 months. See id. ch. 5, pt. A. The court imposed a sentence of 94 months.

II. ANALYSISA. The Search

The Fourth Amendment generally prohibits a police officer from searching a home without a warrant. See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). A warrantless search may be valid, however, if the officer has the voluntary consent of either the owner or a third party with actual or apparent authority. See id. at 181, 186–89, 110 S.Ct. 2793. The government in this case relies on the consent of Ms. Ramsey to justify the search of Defendant's trailer.

Defendant challenges the search on the grounds that Ms. Ramsey's consent was not voluntary and that she lacked authority to consent to the search of the bag in which the firearm was found. “When reviewing a district court's denial of a motion to suppress, [we] consider the totality of the circumstances and view[ ] the evidence in the light most favorable to the government.” United States v. Andrus, 483 F.3d 711, 716 (10th Cir.2007). We accept the district court's factual findings unless they are clearly erroneous.” Id. “Consideration of witness credibility, the weight given to evidence, and reasonable inferences drawn from evidence are within the district court's province as the fact-finder.” Id. The validity of consent is reviewed de novo. See id.

Although Defendant raises some arguments based on evidence elicited at trial, we will consider only the evidence before the district court at the suppression hearing. Because “the district court should have the first opportunity to correct its mistake,” we ordinarily “will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.” United States v. Parra, 2 F.3d 1058, 1065 (10th Cir.1993). The district court may consider trial testimony if the defendant renews the suppression motion at trial, see id., but the court ordinarily need not do so if counsel fails to alert the court to how the evidence has been altered or supplemented at trial and why the change would affect the ruling. Absent exceptional circumstances that would justify relief for plain error, the court has no responsibility on its own to compare trial evidence with the evidence at the hearing and then analyze whether its prior ruling should stand. See id.; United States v. Humphrey, 208 F.3d 1190, 1204 (10th Cir.2000) (if trial testimony would support a different legal justification for suppressing evidence, the defendant must inform the trial court of that new justification in renewing suppression motion at trial); cf. United States v. Burke, 633 F.3d 984, 987–88 (10th Cir.2011) (failure to include a particular argument in a pretrial suppression motion waives the argument on appeal); Sorensen v. City of Aurora, 984 F.2d 349, 355 (10th Cir.1993) (failure to raise specific objection to district court's exclusion of evidence precluded review on appeal).

In this case Defendant renewed his motion twice at trial but the renewals were perfunctory. See, e.g., R., Vol. 2 pt. 2 at 285 (“I would like to renew that objection, your Honor, and ask that the Court reconsider the admission of the firearms.”). Defendant did not so much as hint that he believed he had a ground for suppression that had not been fully vetted at the suppression hearing. The renewals of Defendant's motion at trial therefore can be ignored on appeal, and Defendant does not (and could not) argue plain error. 2 Thus, we address only the record from the suppression hearing, as we now turn to Defendant's two challenges to the validity of Ms. Ramsey's consent.

1. Voluntariness

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